backus v. fort street union depot co., 169 u.s. 557 (1898)

8/17/2019 Backus v. Fort Street Union Depot Co., 169 U.S. 557 (1898)

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169 U.S. 557

18 S.Ct. 445

42 L.Ed. 853

BACKUS et al.

v.

FORT ST. UNION DEPOT CO.

No. 55.

March 7, 1898.

The defendant in error is a cop oration created under the laws of the state

of Michigan, for the purpose of constructing a union depot in the city of

Detroit. In order to connect this depot with the railroads desiring to enter,

it was necessary to place tracks on River street, and some of the way, at

least, these tracks had to be elevated above the grade of the street. As a

part of its enterprise the depot company undertook the work of

constructing these tracks. The plaintiffs in error were the owners of a

manufacturing plant. The individual plaintiff in error held the title in fee

to the property, and the corporation plaintiff in error was his lessee. Thismanufacturing plant fronted on River street, and fronted on that part of it

where the tracks were necessarily on a viaduct far above the surface. No

part of the ground actually occupied by the plant was sought to be taken,

but under the laws of Michigan the owner of a lot fronting on a street

owns to the center of the highway, and is entitled to recover damages in

case that street is appropriated to the use of a railroad. The third clause in

section 4 of the union depot act (1 How. Ann. St. § 3461) provides

specifically that the amount of these damages shall be ascertained in thesame way as is provided in ordinary cases of condemnation.

The constitution of Michigan provides:

Article 15, § 9: 'The property of no person shall be taken by any

corporation for public use without compensation being first made or

secured, in such manner as may be prescribed by law.'

Article 18, § 2: 'When private property is taken for the use or benefit of

the public, the necessity for using such property, and the just

compensation to be made therefor, except when to be made by the state,


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shall be ascertained by a jury of twelve freeholders, residing in the vicinty

of such property, or by not less than three commissioners, appointed by a

court of record, as shall be prescribed by law.'

The Michigan union depot act was passed in 1881. It prescribes

proceedings for the condemnation of private property, substantially

similar to those in the Michigan general railroad law, first passed in 1855.Sections 9, 10, and 11 of the depot act, being sections 3466, 3467, and

3468 of 1 How. Ann. St., provide:

§ 3466—Sec. 9: 'The commissioners shall take and subscribe the oath

prescribed by article eighteen of the constitution. * * * They may view the

premises described in the petition, and shall hear the proof and allegations

of the parties, and shall reduce the testimony, if any is taken by them, to

writing, if requested to do so by either party, and after the testimony is

closed in such case, and without any unreasonable delays, and before

proceeding to the examination of any other claim, all being present and

acting, shall ascertain and determine the necessity of taking and using any

such real estate or property for the purposes described; and, if they deem

the same necessary to be taken, they shall ascertain and determine the

damages or compensation which ought justly to be made by the company

therefor to the party or parties owning or interested in the real estate or

property appraised by them. * * * They shall make a report to said court or

judge, signed by them, of the proceedings before them, if any, which may be filed with the clerk of the court, either in vacation or term time, or the

probate court, as the case may be. * * * In case a jury shall have been

demanded and ordered by the court, pursuant to section eight of this act,

the said jury shall proceed to ascertain and determine the necessity of

taking and using any such real estate or property, and the damage or

compensation to be paid by the company therefor, in the same manner and

with like effect as is provided in this section in the case of commissioners,

and as is further provided in said section eight. * * * The said judge, or acircuit court commissioner to be designated by him, may attend said jury,

to decide questions of law and administer oaths to witnesses, and he may

appoint the sheriff or other proe r officer to attend and take charge of said

jury while engaged in said proceedings. And the jury shall proceed to

determine the amount of damages to be awarded, and shall have all the

powers hereby conferred upon commissioners; and a report signed by the

jury, whether the judge is or is not in attendance, shall be valid and legal.

* * *'

§ 3467—Sec. 10: 'On such report being made by the commissioners or

jury, the court, on motion, shall confirm the same on the next or any


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subsequent day when in session, unless for good cause shown by either

party; and when said report is confirmed, said court shall make an order

containing a recital of the substance of the proceedings in the matter of the

appraisal, and a description of the real estate or property appraised, for

which compensation is to be made, and shall also direct to whom the

money is to be paid, or when and where it shall be deposited by the

company. Said court, as to the confirmation of such report, shall have the powers usual in other cases.'

§ 3468—Sec. 11: 'A certified copy of the order so to be made shall be

recorded in the office of the register of deeds for said county, in the book

of deeds; and thereupon, on the payment or deposit by the said company,

of the sum to be paid as compensation for such land, franchise or other

property, and for costs, expenses and counsel fees as aforesaid, and as

directed by said order, the company shall be entitled to enter upon andtake possession of and use the said land, franchise and other property for

the purpose of its incorporation; and all persons who have been made

parties to the proceeding, either by publication of otherwise, shall be

divested and barred of all right, estate and interest in such real estate,

franchise or other property, until such right or title shall be again legally

vested in such owner; and all real estate or property whatsoever acquired

by any company under and in pursuance of this act, for the purpose of its

incorporation, shall be deemed to be acquired for public use: provided, the

said sum to be paid as damages and compensation, and costs, expenses

and counsel fees as aforesaid, shall be paid by the company, or deposited

as provided in this act, within sixty days after the confirmation of said

report by the said court; and in case said company fail or neglect so to do,

such failure or neglect shall be deemed as a waiver and abandonment of

the proceedings to acquire any rights in said land or property. Within

twenty days after the confirmation of the report of the commissioners or

jury, as above provided for, either party may appeal, by notice in writing

to the other, to the supreme court, from the appraisal or report of the

commissioners or jury; such notice shall specify the objections to the

proceedings had in the premises, and the supreme court shall pass on such

objections only, and all other objections, if any, shall be deemed to have

been waived; such appeal shall be heard by the supreme court at any

general or special term thereof, on notice thereof being given according to

the rules and practice of the court. On the hearing of such appeal, the

court may direct a new appraisal before the same or new commissioners

or jury, in its discretion. The second report shall be final and conclusiveupon all parties interested. If the amount of the compensation to be

allowed is increased by the second report, the difference shall be a lien on

the land appraised, and shall be paid by the company to the parties


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entitled to the same, or shall be deposited as the court shall direct; and in

such case all costs of the appeal shall be paid by the company; but if the

amount is diminished, the difference shall be refunded to the company by

the party to whom the same may have been paid, and judgments therefor

and for all costs of the appeal shall be rendered against the party so

appealing. On the filing of the report, such appeal, when made by any

claimant of damages, shall not affect the said report as to the right andinterests of any party, except the party appealing; nor shall it affect any

part of said report in any case, except the part appealed from; nor shall it

affect the possession of such company of the land appraised; and when the

same is made by others than the company, it shall not be heard except on

a stipulation of the party appealing not to disturb such possession during

the pendency of such proceedings.'

The proceedings were commenced in the usual form by a petition filed bythe depot company, January 24, 1891, in the circuit court for the county

of Wayne, in which county the city of Detroit is situate.

The plaintiffs in error (respondents below) demanded a jury. The first

hearing commenced on February 25, 1891, and terminated on March 18,

1891, in a disagreement of the jury upon both issues, that of necessity, and

that of compensation. A second hearing was had, commencing on June 10,

1891, and resulting on July 16, 1891, in a verdict in favor of the depot

company on the question of public necessity, and assessing the damagesof the respondents as follows: To Absalom Backus, Jr., as the owner of

the fee, $17,850; to the corporation, A. Backus, Jr. & Sons, $78,293. At

neither of these hearings was the judge of the circuit court present. Upon

the motion of the depot company the circuit court vacated the award of

damages, and ordered that a new jury be impaneled. Thereupon the

respondents applied to the supreme court of the state for a writ of

mandamus to compel the setting aside of this order. That court, on

November 19, 1891, issued a peremptory writ of mandamus as prayed for.89 Mich. 210, 50 N. W. 646. On November 30, 1891, the circuit court, in

compliance with this writ, entered an order which, as amended, confirmed

the verdict and award of the jury, and also provided as follows:

'It is further ordered that within sixty days from the date of this order the

Fort Street Union Depot Company is required to tender and pay to

Absalom Backus, Jr., the sum of seventeen thousand eight hundred and

fifty dollars, and to A. Backus, Jr. & Sons the sum of seventy-eightthousand two hundred and ninety-three dollars, and to James N. Dean and

William H. Davidson, executors, the sum of one dollar, together with their

costs and expenses, if the same have been taxed, including an attorney fee


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of twenty-five dollars; and if the said parties or either of them refuse to

accept the tender and payment of said sums, the Fort Street Union Depot

Company is required to deposit the same, under the supervision of the

clerk of this court, in the Detroit National Bank and to the credit of this

cause, including said costs and expenses: provided, that, if said costs and

expenses have not been taxed within the said sixty days, the same to be so

deposited within five days after they are taxed.

'Said money shall remain on deposit in said bank, but at the risk of the

petitioner, subject to be drawn therefrom, and to be paid to the parties

entitled to the same, on orders signed by one of the judges of this court

and countersigned by the clerk.

'It is further ordered that upon the tender and payment or deposit of said

sum of ninety-six thousand one hundred and forty-four dollars, and of said

costs, expenses, and counsel fees, as aforesaid, the said Fort Street Union

Depot Company shall be entitled to enter upon and take possession of and

use the right of way above described for the purpose of its incorporation,

under its articles of association and the constitution and laws of this state,

and that said respondent shall be devested and barred of all right, estate,

and interest in such right of way, until such right or title shall be again

legally vested in them, and said right of way shall be deemed to have been

acquired by said company for public use.'

On December 2, 1891, the depot company appealed from the award of the

jury, and from the confirmation thereof, to the supreme court of the state.

On January 26, 1892, the depot company paid to the respondents, and

they received, the amounts awarded to them, n d thereupon the depot

company took full possession of the property, constructed its tracks, and

has been ever since in possession and use of them. On March 3, 1892, the

appeal was argued in the supreme court, and on June 10, 1892, its decision

was announced. 92 Mich. 33, 52 N. W. 790. It was held by a majority of the court (the chief justice dissenting) that the opinion expressed on the

granting of the mandamus had too narrrowly restricted the powers of the

circuit court, and it was ordered that the verdict of the jury, while

confirmed so far as it determined the question of necessity, should be

vacated and set aside so far as it awarded compensation, and that the

cause be remanded to the circuit court, with directions to proceed with a

new appraisal, the costs of the appeal to abide the event of such appraisal.

It was also held that the fact that the amount of the award and

confirmation had been paid to the respondents, and the property taken

possession of by the depot company, since the taking of the appeal, did


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not affect the right of the depot company to a new trial upon the question

of compensation.

When the case was returned to the circuit court the respondents objected

to any further proceedings, but the same was overruled, and a jury

impaneled. The sessions of this jury were presided over by the circuit

judge, and, after hearing the testimony and examining the property, itreturned a verdict, assessing the damages of the individual respondent at

the sum of $15,000, and of the corporation respondent at the sum of

$48,000. Thereupon, on motion of the depot company, and on December

28, 1893, the circuit court entered a judgment against the individual

respondent for $2,850, the difference between the amount of the first and

second awards, and a like judgment against the corporation respondent for

$30,293, and also a judgment against both respondents for the costs of the

appeal and subsequent proceedings, taxed at $4,168.20. On the 26th of June, 1894, the respondents filed their petition in the supreme court of the

state of Michigan, praying for a writ of certiorari. The writ was allowed,

whereby the entire record was transferred to that court, which, in an

opinion filed on January 8, 1895, affirmed the proceedings below, with

costs. 103 Mich. 556, 61 N. W. 787. Whereupon the plaintiffs below sued

out this writ of error.

Don M. Dickinson, for plaintiff in error.

Fred. A. Baker, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language,

delivered the opinion of the court.

1 Inasmuch as the respondents, both on the trial in the circuit court and in the

subsequent proceedings on the certiorari in the supreme court, specifically setup and claimed rights under the federal constitution which were denied, the

jurisdiction of this court is not open to doubt. They again and again insisted that

certain provisions of the federal constitution, which they named, stood in the

way of any further proceedings against them.

2 It is, also, not open to further debate, since the decision in Chicago, B. & Q. R.

Co. v. City of Chicago, 166 U. S. 226, 17 Sup. Ct. 581, that this court may

examine proceedings had in a state court, under state authority, for theappropriation of private property to public purposes, so far as to inquire whether

that court prescribed any rule of law in disregard of the owner's right to just

compensation. But in this respect we quote the restriction placed in the opinion


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then filed (page 246, 166 U. S., and page 588, 17 Sup. Ct.):

3'We say, 'in absolute disregard of the company's right to just compensation,'

because we do not wish to be understood as holding that every order or ruling

of the state court in a case like this may be reviewed here, notwithstanding our

jurisdiction, for some purposes, is beyond question. Many matters may occur in

the progress of such cases that do not necessarily involve, in any substantialsense, the federal right alleged to have been denied; and in respect of such

matters, that wi ch is done or omitted to be done by the state court may

constitute only error in the administration of the law under which the

proceedings were instituted.'

4 While in cases of this kind coming from the supreme court of a state, questions

of fact passed upon in the state courts are not here open to review (Egan v.

Hart, 165 U. S. 188, 17 Sup. Ct. 300, and cases cited in the opinion) it may not be inappropriate to notice that the award of compensation as finally sustained

gave to the respondents the sum of $63,000. As the valuation they placed upon

the plant, outside of the realty, was only $150,000, and of the realty the like

sum of $150,000, though the realty cost in 1871 less than $30,000, and as none

of the ground upon which the plant stood and the business was carried on was

taken by the depot company, but only the use of the street in front thereof, and

that not so as to exclude them from its use, it is obvious that the award, whether

adequate or not, was not one in reckless disregard of their rights.

5 It is not questioned by counsel that the settled rule of this court in cases of this

kind is to accept the construction placed by the supreme court of the state upon

its own constitution and statutes as correct. Long Island Water Supply Co. v.

City of Brooklyn, 166 U. S. 685, 17 Sup. Ct. 718; Merchants' & Manufacturers'

Nat. Bank of Pittsburg v. Pennsylvania, 167 U. S. 461, 17 Sup. Ct. 829, and

cases cited in those opinions. His contention, however, is that the true

construction of the constitution and laws of the state, as settled by repeateddecisions of its supreme court, was wholly disregarded in this case, and that by

reason thereof the respondents were denied that equal protection of the laws

which is guarantied by the fourteenth amendment to the federal constitution.

His contentions are grouped under the following heads:

6 '(1) They were denied the fundamental right to have an ascertainment and

determination of the amount of compensation and its final payment before

being deprived of their property.

7 '(2) They were denied the protection of that guaranty of the state constitution


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providing that the questions of compensation and necessity should be passed

upon by one and the same jury, and of the settled, uniform, and unreversed

construction of the constitution to that effect by the state judiciary in respect of

all other citizens.

8 '(3) They were denied the protection of a trial on the questions of necessity and

compensation by the tribunal guarantied by the constitution of the state, inaccordance with the settled, uniform, and unreversed construction of that

constitution in respect of all other citizens.

9 '(4) They were denied that measure of just compensation for their property

taken, guarantied by the constitutions, federal and state, as the same was and is

accorded to all other persons than themselves.

10 '(5) They were denied a hearing and deprived of a hearing guarantied by the

constitutions, federal and state, as 'due process of law,' when summoned into

court as appellees to defend their property, rights, and themselves from

imputations upon them.

11 '(6) Finally, having been deprived of their property sought by the railroad

company for its purposes, their personal assets of the value of one hundred and

ten thousand ($110,000) dollars were taken from them under the color of a judgment and process unknown to the constitution and statutes of Michigan,

and unknown to jurisprudence, whereby they were deprived of their property

without 'due process of law."

12 Attention is called to the fact that while upon the return of the first verdict the

respondents moved to confirm it, which motion was denied by the circuit court,

and the verdict set aside, yet after the decision of the supreme court awarding

the writ of mandamus they did not renew that motion; that the petitioner aloneasked for confirmation, though, as expressly stated, for the purpose of taking an

appeal to the supreme court; that, after the order of confirmation had be n

entered, it paid the amount of the award to the respondents, which sum was

accepted by them; and that thereupon it took possession of the property, and has

since continued in undisturbed possession and use. It is insisted that such

payment and taking possession created under the constitution and statutes of

Michigan a finality so far as the depot company was concerned, and that to this

effect had been the repeated adjudications of the supreme court of the state. Theargument is that the property owner has a constitutional right to have the

amount of his compensation finally determined and paid before yielding

possession; that the party seeking condemnation (in this case the depot


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company) cannot be let into possession until after all question as to the

compensation has been finally settled, and the amount thereof paid; that it

cannot take advantage of one report or verdict, pay the sum fixed by it, obtain

possession, and still litigate the question of amount; that, if it does then pay and

take possession, its right to further litigate is ended. But the supreme court of

the state held against this contention, and we must assume therefrom that it is

not warranted by the constitution and statutes of the state. Indeed, the languageof that constitution is, 'made or secured.' Does this amount to a denial of the

right to that protection to property which is guarantied by the fourteenth

amendment to the federal constitution? In other words, is it beyond the power

of a state to authorize in condemnation cases the taking of possession prior to

the final determination of the amount of compensation and payment thereof?

This question is fully answered by the opinions of this court in Cherokee Nation

v. Southern Kan. Ry. Co., 135 U. S. 641, 10 Sup. Ct. 965, and Sweet v. Rechel,

159 U. S. 380, 16 Sup. Ct. 43. There can be no doubt that, if adequate provisionfor compensation is made, authority may be granted for taking possession,

pending inquiry as to the amount which must be paid and before any final

determination thereof.

13 Neither can it be said that there is any fundamental right secured by the

constitution of the United States to have the questions of compensation and

necessity both passed upon by one and the same jury. In many states the

question of necessity is never submitted to the jury which passes upon thequestion of compensation. It is either settled affirmatively by the legislature, or

left to the judgment of the corporation invested with the right to take property

by condemnation. The question of necessity is not one of a judicial character,

but rather one for determination by the lawmaking branch of the government.

Boom Co. v. Patterson, 98 U. S. 403, 406; U. S. v. Jones, 109 U. S. 513, 3 Sup.

Ct. 346; Cherokee Nation v. Southern Kan. Ry. Co., supra.

14 Neither was there anything in the proceedings actually had before the last juryand in the circuit court which conflicts with any mandate of the federal

constitution. Counsel say that the respondents were entitled to a trial by a jury

of inquest, but were forced to trial before a common-law jury, presided over and

controlled by the circuit judge. But the constitution of the United States does

not forbid a trial of the question of the amount of compensation before an

ordinary common-law jury, or require, on the other hand, that it must be before

such a jury. It is within the power of the state to provide that the amount shall

be determined in the first instance by commissioners, subject to an appeal to thecourts for trial in the ordinary way; or it may provide that the question shall be

settled by a sheriff's jury, as it was constituted at common law, without the

presence of a trial judge. These are questions of procedure which do not enter


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into or form the basis of fundamental right. All that is essential is that in some

appropriate way, before some properly constituted tribunal, inquiry shall be

made as to the amount of compensation, and, when this has been provided,

there is that due process f law which is required by the federal constitution.

Bauman v. Ross, 167 U. S. 548, 593, 17 Sup. Ct. 966. These considerations

dispose of all the objections embraced in the first three contentions of counsel,

so far as those objections run to the validity of the proceedings actually had, providing those proceedings were warranted by the constitution and statutes of

the state.

15 But it is insisted that those proceedings were not so warranted; that the settled,

uniform, and unreversed construction thereof by the supreme court of the state

theretofore forbade them, and hence there was a discrimination against the

respondents, and they were denied that equal protection of the laws which the

federal constitution guaranties. Thus, for instance, it is insisted that the previous rulings of the courts, both trial and supreme, had been to the effect that

a jury called under these condemnation statutes was a jury of inquest, and not a

trial jury, whereas, in this case, the ruling was practically to the contrary, and

the respondents were compelled to submit their rights to a trial jury, subject to

the control of the presiding judge, as in ordinary common-law cases. We deem

it unnecessary to review the many authorities from the supreme court of

Michigan cited by counsel, or determine whether the ruling in this case as to

methods of procedure and the true construction of the statute is or is not inharmony with prior decisions of that court. Accepting the contention of

counsel, that in this case the supreme court of the state has put a different

construction on the state statutes from that theretofore given, and has sustained

modes of procedure different from those which had previously obtained, still it

does not follow that this court has a right to interfere, and say that the present

ruling is erroneous, and the prior construction correct, or that the change of

construction works a denial of any fundamental rights. There is no vested right

in a mode of procedure. Each succeeding legislature may establish a differentone, providing, only, that in each is preserved the essential elements of

protection. The fact that one construction has been placed upon a statute by the

highest court of the state does not make that construction beyond change.

Suppose it were true, in the fullest sense of counsel's contention, that for a

series of years the courts had ruled that the jury in condemnation cases was a

jury of inquest, or in the nature of a sheriff's jury, one determining for itself all

matters of law and fact,—and that in this case, for the first time, they held

otherwise, and that such jury was a commonlaw jury, subject to be controlled by the presiding judge, whose duty it was to determine all questions of law; and

still, whatever might be thought of the propriety of such a change of

construction, there is in it nothing to justify this court in reversing the judgment


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of the state court, and denying the correctness or validity of this last ruling. We

fail to see why the presence of the judge with this jury, his assumption of power

to control its proceedings, his instructions to it on questions of law, necessarily

vitiated the proceedings. Grant that such a course had never been taken before;

grant that it had never been held to be a proper proceeding; grant that it was

unexpected by counsel,—and yet, if the judge's rulings and instructions were in

themselves correct, and the propriety of his presence and control be held by thesupreme court of the state warranted by the statutes, we do not perceive that

any right possessed under the constitution of the United States has been

violated.

16 The question is not presented of a distinct ruling by a state court that one party

is entitled to certain rights and the benefits of certain modes of procedure, and

that another party similarly situated is not entitled to them. An act of the

legislature which in terms gave to one individual certain rights, and denied toanother similarly situated the same rights, might be challenged n the ground of

unjust discrimination and a denial of the equal protection of the laws. But that

does not prevent a legislature, which has established a certain rule of procedure,

and continued it in force for years, from subsequently repealing the act, and

establishing an entirely different mode of procedure. In other words, there is no

absolute right vested in the individual as against the power of the legislature to

change modes of procedure. And a similar thought controls where the courts of

the state have construed a statute as prescribing one form of procedure, and parties have acted under that construction, and then subsequently the same

court has held that the statute was theretofore misconstrued, and really provided

a different mode of procedure. This last adjudication cannot be set aside in the

federal courts on the ground of an unjust discrimination or a denial of the equal

protection of the laws.

17 We, of course, do not mean to affirm that there has been by the supreme court

of the state such a change of adjudication. We simply in this respect accept thecontention of counsel for the respondents, and hold that, even if the facts be as

claimed by him, they furnish no ground for interference by this court. It should

be noticed, in passing, however, that nearly all, if not absolutely all, of the cases

which he cites from the supreme court of Michigan arose under the provisions

respecting condemnation in the general railroad act, while these proceedings

were had under the union depot act, and, although the two acts may be

substantially similar, yet this adjudication is under a different statute from that

under which most, if not all, of the prior decisions were made.

18 Passing, now, to the fourth point: Under this it is claimed that the trial judge

gave to the jury an improper measure of damages. During the argument of


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counsel for the respondents this colloquy took place, as appears from the

record:

19 'Court: A question which arises in my mind is this: There is no question but

what the Backuses are entitled to full compensation for such damages as they

may suffer; but does not the other rule also attach, and that is, that the jury are

not in any way to consider any speculative damages or any probable damages?

20 'Mr. Dickinson: They can only consider the damages which are actually shown,

but the other rule follows, may it please your honor, that they are not to

estimate those damages for a year, or estimate the present injury done by the

railroad, but they must assume that the railroad is running to its maximum

capacity, that it has other railroads, that it may double, treble, or quadruple its

trains, so far as that is concerned, and they must estimate the damage for the

future time, not for a year, or three years, or five years, or ten years.

21 'Court: That is undoubtedly true to a certain extent, but the question that I have

thought about considerably within the last few days is in regard to the

testimony which was admitted in the case in regard to their profits,—the profits

of their business. Do they not come within the rule which applies in regard to

speculative damages?'

22 Afterwards, when the counsel for petitioner was making his argument, he said:

23 'In other words, if the court please, the question as to what business is carried

on there, and as to how profitable an institution it might be, is merely an

element to be considered in establishing the market value of the property.'

Upon which the judge made this comment:

24 'In other words, if a profitable business is carried on in connection with a certain

site, the profitableness of the business itself must be taken into consideration by

the jury in estimating the value?' After the arguments were over the judge

charged the jury as follows:

25 'Upon this question, viz. compensation or damages, what I have to say must

necessarily be in a broad and the most general way. This is a question for you,

and, from the very nature of a proceeding of this character, you are vested with

large powers and great discretion. These powers and this discretion should not

be exercised arbitrarily, nor without proper regard for substantial justice. You


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should bear in mind that, the greater the power, the more jealous is the law of

its careful exercise, and the greater is the responsibility of the persons vested

therewith. You should exercise a cool, careful, intelligent, and unbiased

judgment. The compensation or damages must be neither inadequate nor

excessive, and your award must not furnish a just inference of the existence of

undue influence, partiality, bias, and prejudice, or unfaithfulness in the

discharge of the duties imposed upon you. You must, however, remember thatthe respondents' property is taken, or its enjoyment interfered with, under the

so-called power of eminent domain,—a power somewhat, and necessarily,

arbitrary in its character,—and that, where this is done, the party whose

property is taken, or whose enjoyment or use of the property is interfered with,

is entitled to full compensation for the injury inflicted. While the allowance to

be made should be liberal, still it must not be unreasonably exorbitant or

grossly excessive. It should be a fair and liberal allowance, and full and

adequate compensation for the damages inflicted. You should not allow toolittle, nor should you allow too much. Your award should be based upon that

which is real, and what is substantial, and not upon what is either fictitious or

speculative. You should look at the conditions of things as they exist. Under

the constitution and laws the right to take another's property for public uses, the

power to exercise the right of eminent domain, is a part of the law of the land;

but, when this power is exercised, it can only be done by giving the party

whose property is taken, or whose use and enjoyment of such property is

interfered with, full and adequate compensation,—not excessive or exorbitant, but just, compensation.

26 'I shall not call attention to any particular part of the testimony in the case. The

responsibility of its application and the weight to be given it rests with you,

always regarding that which is real and substantial, and disregarding that which

is fictitious and speculative; treating conditions as they have been shown and as

they are, without speculating as to what might possibly happen or occur; taking

conditions as you find them, and the natural and probable consequencesfollowing such conditions.'

27 And this was all which was said in reference to the measure of compensation.

Now, it is insisted by counsel that the profits which the manufacturing plant

was making were to be taken into consideration by the jury in awarding

compensation, inasmuch as the business of that plant was seriously interrupted,

if not practically destroyed, by this condemnation; that, inasmuch as the query

was suggested by the judge during the argument whether profits did not comewithin the rule as to speculative damages, the failure to charge distinctly that

they were proper subjects of consideration was equivalent to an instruction that

they were not to be considered, and that, therefore, the true rule of


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compensation was not given to the jury.

28 It is evident that the judge did not attempt to define the several elements which

enter into the general fact of compensation, or the various matters to be

considered by the jury. He simply charged generally that, as this was an

arbitrary taking of the property of the respondents, they were entitled to full

compensation, and left to the jury the duty of determining what should be suchcompensation, telling them plainly that they were vested with large powers and

great discretion. If it be said that the judge had intimated by his query that the

matter of profits came within the rule applicable to speculative damages, it

must also be noticed that, further on, he suggested that the profitableness of a

business was to be taken into consideration in estimating the value. It is true he

nowhere instructed the jury to make the profits of the business the criterio of

value, nor, indeed, would he have been justified in so doing. The profitableness

of the business was undoubtedly a matter to be considered, and so the judgefairly intimated in these prior colloquies. But the profits of a business are not

destroyed unless the business is not only there stopped, but also one which in its

nature cannot be carried on elsewhere. If it can be transferred to a new place,

and there prosecuted successfully, then the total profits are not appropriated,

and the injury is that which flows from the change of location.

29 But beyond this no special instructions were asked by the respondents at the

time of the giving of the charge. The statute (section 3466) provides that the judge 'may attend said jury, to decide questions of law.' So far as he gave

instructions, it is obvious that he stated that which was the law, and the real

objection is that he did not go further, and enter into a more minute description

of the elements which were to be taken into consideration by the jury in fixing

the amount of compensation; that they may, from the colloquies which had

taken place during the arguments, have drawn improper inferences as to the

limit to which they were warranted in going; and that those inferences he failed

to correct by specifically stating what matters they should consider. A sufficientanswer is that the respondents did not ask any further instructions. All they did

was to except to what had been stated. By wellsettled rules no appellate court

would under such circumstances be required to set aside the judgment of the

trial court. Shutte v. Thompson, 15 Wall. 151, 164; Insurance Co. v. Snyder, 93

U. S. 393; Railway Co. v. Volk, 151 U. S. 73, 14 Sup. Ct. 239; Isaacs v. U. S.

159 U. S. 487, 16 Sup. Ct. 51.

30 But a more complete and satisfactory answer is that whatever error there mayhave been affords no ground for the interference of this court. The respondents

were not thereby deprived of any rights secured by the federal constitution.

They were not denied 'due process of law.' The proceedings were had before a


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duly-constituted tribunal, in accordance with the declared law of the state, with

full opportunity to be heard. Nor were they denied 'the equal protection of the

laws.' The rule as to the necessity of asking special instructions was

administered in this case no differently than in others. Marchant v. Railroad

Co., 153 U. S. 380, 14 Sup. Ct. 894. The error, if any there be, was not one 'in

absolute disregard of their right to just compensation,' but was only error in the

administration of the law under which those proceedings were instituted. Asclearly pointed out in Chicago, B. & Q. R. Co. v. City of Chicago, supra, it is

not every error occurring in a state court in the administration of its law

concerning condemnation of private property for public purposes that opens the

door to review by this court. We are not called upon to search the record simply

to inquire whether there may or may not have been errors in the proceedings.

Our limit of interference is reached when it appears that no fundamental rights

have been disregarded by the state tribunals.

31 Under the fifth head counsel present two matters:

32 '(1) The denial by the supreme court of the state of a hearing on the substantial

and essential question of whether counsel for plaintiffs in error abused their

privilege as counsel by arguing to the jury on the question of necessity that the

margin of the depot grounds that belonged to the Michigan Central road could

be taken for the elevated structure; and (2) the reversal of the unanimous

judgment of the supreme court of the state in 89 Mich. 209, 50 N. W. 646,without a rehearing, by the judgment in 92 Mich. 33, 52 N. W. 790.'

33 With reference to the first, it is enough to say that the respondents did not

appeal to the supreme court, and that under section 3468 it would seem that that

court was called upon to consider only such objections as had been particularly

specified. 'Either party may appeal, by o tice in writing.' 'Such notice shall

specify the objections.' 'The supreme court shall pass on such objections only,

and all other objections, if any, shall be deemed to have been waived.' Noobjection to the finding of the jury as to the question of necessity had been

made by the appellant, and therefore was to be treated as waived. Under those

circumstances it cannot be said that the supreme court deprived the respondents

of any rights by refusing to hear counsel in respect to the question of necessity

or connected with its determination.

34 With regard to the second, technically, the decision on the mandamus

proceeding and that on the appeal did not conflict. The writ of mandamus

directed the circuit judge to set aside the order which he had entered vacating

the award. It thus in effect declared that that judge ought not to have made such

an order. On the appeal the supreme court itself ordered that the award be set


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aside, and a new jury impaneled, and remanded it to the circuit court for such

new appraisal. This is within the letter of the statute (section 3468): 'On the

hearing of such appeal, the court may direct a new appraisal before the same or

new commissioners or jury, in its discretion.' The decision by the supreme

court, that it had power to set aside the verdict and order a new appraisal, was

not a reversal of a ruling that the circuit court had no such power, although it

may suggest consequences somewhat singular. Appreciating that fact, in thelast opinion the court declared that in the former decision its language

restricting the power of the circuit court had been too strong.

35 Coming, now, to the last point, the supreme court held that, as upon the second

appraisal the damages were less than those awarded on the first, and the

amount of the first had been paid to the respondents, the petitioner was entitled

to a judgment for the difference. The language of the statute (section 3468) is:

'But if the amount is diminished, the difference shall be refunded to thecompany by the party to whom the same may have been paid, and judgments

therefor and for all costs of the appeal shall be rendered against the party so

appealing.' It may be that this language is not entirely apt, for in this case the

party appealing was not the landowner, but the depot company, and so it cannot

be said that judgments were rendered against 'the party appealing.' But the true

intent of the statute is obvious, and at any rate we are bound to accept the

construction placed upon it by the supreme court, and hold that it means that if

the last appraisal was less than the first, and the amount of the first had been paid, the company was entitled to recover the difference from the party to

whom it had been paid. Nothing is said, it is true, in the statute about execution,

but the supreme court ruled that under the general statutes the recovery of the

judgment carried with it a right to an execution.

36 These are all the questions in this case. We find nothing in them which justifies

an interference by this court with the proceedings of the state courts,—nothing

in which it can be said that any ruling of those courts was in absolute disregardof the respondents' right to compensation. The judgment must, therefore, be

affirmed.

37 Mr. Justice BROWN took no part in the decision of this case.

38 Mr. Justice HARLAN (dissenting).

39 Did the trial court prescribe any rule of law for the guidance of the jury that

was in absolute disregard of the right of the plaintiffs in error to such

compensation?


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40 In Chicago, B & Q. R. Co. v. City of Chicago, 166 U. S. 226, 241, 17 Sup. Ct.

581, it was held that 'a judgment of a state court, even if it be authorized by

statute, whereby private property is taken for the state or under its direction for

public use, without compensation made or secured to the owner, is, upon

principle and authority, wanting in the due process of law required by the

fourteenth amendment of the constitution of the United States, and the

affirmance of such judgment by the highest o urt of the state is a denial by thatstate of a right secured to the owner by that instrument.'

41 Before proceeding with his argument to the jury, Mr. Dickinson, the attorney

for the plaintiffs in error, called the attention of the trial court to some of the

principles which, in his judgment, should control the ascertainment of the just

compensation to which they were entitled. Addressing the court in the presence

of the jury, he said: 'Now, as to what is compensation, I refer your honor to the

case of Grand Rapids & I. R. Co. v. Heisel, 47 Mich. 398, 11 N. W. 215: 'Itneed hardly be said that nothing can be fairly termed compensation which does

not put the party injured in as good a condition as he would have been if the

injury had not occurred. Nothing short of this is adequate compensation. In the

case of land actually taken, it includes its value, or the amount to which the

value of the property from which it is taken is depreciated, and in Jubb v. Dock

Co., 9 Q. B. 443, it was held, where the property taken was a brewery in

operation, the damages included the necessary loss in finding another place of

business. In cases where damage is by injury aside from the actual taking of property, the rule has been to make the party whole as nearly as practicable, and

where it affected the rental value or enjoyment the same principle has been

applied as in other cases. There is no reason, and, so far as we can discover, no

law, which allows the wrongdoer to cast any portion of an actual and

appreciable loss on the party whom he injures. [In this case the same rule of

damages would apply as in the Grand Rapids & I. R. Co. Case, and the suit was

brought for damages, and the question was what was compensation.] In such a

case as this, it is in the power of the company, and always has been, to have thecompensation settled once for all, and to get any benefit which the law attaches

to such a method of ascertainment. Until this is done the possession is a

continual wrong."

42 At this point the court interrupted the argument of counsel with this

observation: 'A question which arises in my mind is this: There is no question

but what the Backuses are entitled to full compensation for such damages as

they may suffer; but does not the other rule also attach, and that is, that the juryare not in any way to consider any speculative damages or any probable

damages?' To this counsel made the following response: 'They can only

consider the damages which are actually shown, but the other rule follows, may


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it please your honor, that they are not to estimate those damages for a year, or

estimate the present injury done by the railroad, but they must assume that the

railroad is running to its maximum capacity, that it has other railroads, that it

may double, treble, or quadruple its trains, so far as that is concerned, and they

must estimate the damage for the future time, not for a year, or three years, or

five years, or ten years.' The court then said: 'That is undoubtedly true to a

certain extent, but the question that I have thought about considerably withinthe last few days is in regard to the testimony which was admitted in the case in

regard to their profits,—the profits of their business. Do they not come within

the rule which applies in regard to speculative damages?' Counsel then

observed: 'Not at all, your honor. If the profits are shown, and the business is

destroyed, you can only show it by the effect upon the business; and upon that

point I call your honor's attention to the unanimous opinion of the supreme

court delivered by Mr. Justice Campbell in the case of Railroad Co. v. Weiden,

70 Mich. 393, 38 N. W. 295: 'Under our constitution there is never any presumption that a railroad is necessary, or that any particular land ought to be

given up to its uses. Every landowner, therefore, has a perfect right to object to

giving up his land, and is not confined to objections depending upon price or

value. And a road already established has no better claim thana ny other to

extend or change its lines. Although railroads are allowed by public policy to

condemn lands, because they cannot exist otherwise, nevertheless, the

enterprise is, under our laws, which prohibit public ownership of railways, one

of private interest and emolument, and must show its claims to legal assistance.' Now, upon the question of profits: 'We are bound to see that parties are not

deprived of their property without necessity, or without full compensation for

being compelled to relinquish it. And, while respect is due to the honest action

of juries, it is not conclusive, and is subject to comparison with the facts in the

record. Both of the appellants were using their property in lucrative business, in

which the locality and its surroundings had some bearing on its value. Apart

from the money value of the property itself, they were entitled to be

compensated so as to lose nothing by the interruption of their business and its

damage by the change. A business stand is of some value to the owner of the

business, whether he owns the fee of the land or not, and a diminution of

business facilities may lead to serious results. There may be cases when the

loss of a particular location may destroy business altogether for want of access

to any other that is suitable for it. Whatever damage is suffered must be

compensated. Appellants are not legally bound to suffer for petitioner's benefit.

Petitioner can only be authorized to oust them from their possessions by making

up to them the whole of their losses.' That goes directly upon the question

which your honor suggests. Now, I shall not take time to refer to the other

cases.'

43 I cannot doubt from what assed between the court and counsel in the resence


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of the jury, that the court meant to characterize profits from the business of the

parties owning the real estate as speculative damages.

44 After the counsel for the parties concluded their argument to the jury upon the

whole case, the trial judge delivered a carefully prepared charge, in which he

said: 'The question, and the only question, before you for your determination, is

that of compensation, and of compensation only. Your duty, and your only duty,

is to ascertain and determine what compensation or damages ought justly to be

paid by the Fort Street Union Depot Company to the respondents for the real

estate, property, franchises, easements, and privileges described in the petition,

viz.: (1) The amount to be allowed to Absalom Backus, Jr., as the owner of the

fee of the land described; (2) the amount to be allowed to A. Backus, Jr., &

Sons, a corporation, as tenants in possession of such lands. Upon this question,

viz. compensation or damages, what I have to say must necessarily be in a

broad and the most general way. This is a question for you, and, from the verynature of a proceeding of this character, you are vested with large powers and

great discretion. These powers and this discretion should not be exercised

arbitrarily, nor without proper regard for substantial justice. You should bear in

mind that, the greater the power, the more jealous is the law of its careful

exercise, and the greater is the responsibility of the persons vested therewith.

You should exercise a cool, careful, intelligent, and unbiased judgment. The

compensation or damages must be neither inadequate nor excessive, and your

award must not furnish a just inference of the existence of undue influence, partiality, bias, and prejudice, or unfaithfulness in the discharge of the duties

imposed upon you. You must, however, remember that the respondents'

property is taken, or its enjoyment interfered with, under the so-called power of

eminent domain,—a power somewhat, and necessarily, arbitrary in its

character,—and that where this is done the party whose property is taken, or

whose enjoyment or use of the property is interfered with, is entitled to full

compensation for the injury inflicted. While the allowance to be made should

be liberal, still it must not be unreasoa bly exorbitant or grossly excessive. Itshould be a fair and liberal allowance, and full and adequate compensation for

the damages inflicted. You should not allow too little, nor should you allow too

much. Your award should be based upon that which is real, and what is

substantial, and not upon what is either fictitious or speculative. You should

look at the conditions of things as they exist. Under the constitution and laws

the right to take another's property for public uses, the power to exercise the

right of eminent domain, is a part of the law of the land; but, when this power is

exercised, it can only be done by giving the party whose property is taken, or whose use and enjoyment of such property is interfered with, full and adequate

compensation,—not excessive or exorbitant, but just, compensation.'


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45 Is it not clear that the trial judge, while indulging in very general language as to

the duty of the jury not to allow too much or too little compensation, gave the

jury to understand that compensation was to be ascertained upon the basis only

of the ownership by Absalom Backus, Jr., of the fee in the land described, and

of the rights of A. Back-us, Jr., & Sons as tenants in possession, excluding

damages to the business of the plaintiffs in error, which would arise from the

condemnation of their property rights? The jury were, in effect, instructed that

the profits derived by them from their business were to be excluded from

consideration as being 'fictitious or speculative.'

46 That he was so understood by counsel for the plaintiffs in error is manifest from

the circumstance that, immediately upon the charge being concluded, he made

the following exceptions to it: 'We except to that part of the charge of the court

wherein he says that the damages are to be confined to the damage to the real

estate described and the improvements upon it. whereas, in our view, the

damages are to the entire plant, including the injury to the business from the

impairment of the mill, as affecting its adjuncts, the lumber yard, and the store

house. * * * To what is said by the court as to avoiding the giving of

speculative damages, in view of what has been said before by the court in

regard to taking into consideration the profits. I refer to what has been said

upon the records in the course of the testimony and upon the argument,

expressing the views of the court against taking into consideration the profits.

We except to the refusal of the court to charge as I requested, in the language or in the substance, according to the decisions of the supreme court, which I read

in full upon the opening of my argument, and called attention of the court to it

especially,—to the expression of Campbell, J., in delivering the opinion of the

court in Railroad Co. v. Welden, 70 Mich. 395, 396, 38 N. W. 294.'

47 If the trial judge did not intend to say to the jury that injury to the business of

the plaintiffs in error was to be deemed speculative, and therefore to be

excluded from consideration, he would instantly have said that no such

impression was intended to be made as that indicated by the exceptions taken to

his charge.

48 The views expressed by counsel for the plaintiffs in error as to the principles

which should guide the jury in the matter of compensation were sustained by

the authorities. In addition to the cases in 47 and 70 Mich., above referred to,

reference may be made to many others decided by the supreme court of Michigan.

49 In Commissioners of Parks & Boulevards of City of Detroit v. Chicago, D. &


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C. G. T. J. R. Co., 91 Mich. 291, 51 N. W. 934, which was a case of the

condemnation of the lands of a railroad company, that court said: 'If, therefore,

their adjoining land is rendered less valuable by the location of a public

highway, or another railroad across its property, there is no reason why they

should not recover compensation therefor. Situated near this crossing is a small

tract of land, used for warehouse purposes. It is insisted by the respondents that,

by reason of this crossing, this land, with the a rehouse thereon, is rendered lessavailable and less valuable for the purposes for which it was constructed and

used. This was a proper element of damage, and should have been submitted to

the jury.'

50 At the same term the court, in Commissioners v. Moesta, 91 Mich. 154, 51 N.

W. 905, quoted with approval what had been said in Railroad Co. v. Weiden,

70 Mich. 395, 38 N. W. 294, saying: 'The constitutional provision entitling the

owner of private property taken for public use to just compensation hasuniformly been construed to require full and adequate compensation. The rules

to be applied in fixing the compensation are not necessarily the same as obtain

in fixing damages in actions upon contracts. The correct rule of compensation

in such cases is more nearly analogous to the remedy afforded in an action in

tort in which property rights have been interfered with without the owner's

assent. In such cases damages for the interruption of the owner's business are

allowed. Allison v. Chandler, 11 mich. 549.' In City of Detroit v. Brennan, 93

Mich. 338, 53 N. W. 525, the court reaffirmed the doctrine of the former cases,that the full measure of compensation and the injury done to the business

should be allowed, and said: 'The law considers the rights of the property and

business carried on by the respondent as of equal consideration, and entitled to

as much protection, as the right of the city to take the property and interfere

with the business, and will not permit the property to be taken and the business

to be interfered with, unless an actual public necessity exists for the making of

the improvement. * * * The elements of damages are: (1) The value of the

property taken for the opening of the street; the injury to the works and property not taken, and left in the parcel of land from which the property is

taken; (2) the injury to the business of the owner; (3) compensation for all

prospective loss or injury resulting from the opening of the street, and the

taking of the property for that purpose.'

51 See, also, Railroad Co. v. Chesebro, 74 Mich. 466, 42 N. W. 69, where the

court said: 'An owner has a right to be indemnified for anything that he may

have lost. The farming test, which is the one petitioner sought to apply, would be of no particular use in a great many cases of suburban lands. * * * The mere

taking of four acres for a right of way could not be regarded, in any sensible

point of view, as compensated by one-tenth of the value of the forty acres,


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taking acre for acre. The damages in such a case must be such as to fully make

good all that results, directly or indirectly, to the injury of the owners in the

whole premises and interests affected, and not merely the strip taken.' Further:

'The jury here, as in all cases where no certain measure exists, must trust

somewhat to their own judgment. That is one of the purposes for which juries

of inquest are provided. They are expected to view the premises and use their

own senses. * * * But the purpose throughout is to give all the damages whichthey reasonably discover, past or present, and to result, but no more. No one

can read this record without seeing that the jury did not deal fully with the case.

It is manifest that they gave no damages beyond what they assumed to be the

price of four acres by the acre. * * * It cannot be said there is any real conflict

as to the damages arising from the cutting off one part from the other of the

forty acres, and this was left out altogether, unless they regarded the proofs of

value wantonly, which we cannot believe.' See, also, Pearsall v. Supervisors,

74 Mich. 561, 42 N. W. 77; Barnes v. Railway Co., 65 Mich. 251, 32 N. W.426; Grand Rapids v. Grand Rapids & I. R. Co., 58 Mich. 641, 648, 26 N. W.

159; Toledo, A. A. & N. M. Ry. Co. v. Detroit, L. & N. R. Co., 62 Mich. 564,

29 N. W. 500; Commissioners of Parks & Boulevards of City of Detroit v.

Chicago, D. & C. G. T. J. R. Co., 91 Mich. 291, 51 N. W. 934; Commissioners

of Parks & Boulevards of City of Detroi v. Michigan Cent. R. Co., 90 Mich.

385, 51 N. W. 447; City of Grand Rapids v. Bennett, 106 Mich. 529, 64 N. W.

585.

52 Without referring to other matters discussed at the bar and in the elaborate brief

of counsel, I place my dissent from the opinion and judgment of the court upon

the ground that the trial court committed error in its charge to the jury as to the

principles which should guide them in determining the just compensation to

which the plaintiffs in error were entitled. The rules laid down by the supreme

court of Michigan as to what was just compensation were, I think, in accord

with the principles that obtain in the courts of the Union when determining the

just compensation to be made for private property taken for public use.

backus v. fort street union depot co., 169 u.s. 557 (1898)

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